CHICAGO TITLE INSURANCE COMPANY VS CRISTINA TALUKDER ET.AL.

Tentative Rulings

Case Number: EC065396    Hearing Date: January 24, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 15

Case Number: EC 065396

Date: 1/24/20 Trial date: March 2, 2020

Case Name: Chicago Title Insurance Company v. Talukder, et al.

MOTION FOR SUMMARY JUDGMENT

(OR, in the Alternative, Summary Adjudication)

[CCP § 437c; CRC 3.1350 et seq.]

Moving Party: Plaintiff Chicago Title Insurance Company

Responding Party: Defendant Mahboob Talukder

Relief Requested:

Summary judgment in favor of plaintiff Chicago Title Insurance Company and against defendant Mahboob Talukder aka David Talukder

In the alternative, summary adjudication of each cause of action

Causes of Action from Complaint

1) Fraud

2) Equitable Indemnity

3) Unjust Enrichment

4) Money Paid

SUMMARY OF COMPLAINT:

Plaintiff Chicago Title Insurance Company alleges that in April of 2003, Penny Martin-Dougherty, the then owner of real property in North Hollywood, became in default on her two deeds of trust, and the senior lender recorded its Notice of Default on the property. As a result, defendant Mahboob Talukder aka David Talukder, and Frank Gonzalez and John Castenade appeared at the property unsolicited and represented to Dougherty that they could assist her to pay off her mortgage through a reverse mortgage loan transaction.

Plaintiff alleges these persons represented to Dougherty that they would pay off her mortgage on the property, but that she would remain title owner of the property, and that they would pay to her the amount of $500 for 15 years. Dougherty agreed to the reverse mortgage and signed documents which included a blank grant deed. Plaintiff alleges that the grant deed was completed and recorded, purportedly conveying the property to GIT, Inc. a limited liability company of defendant David Talukder and defendant Cristina Talukder, which they treated as their alter ego.

Defendants did not pay the mortgages, and as a result the senior deed of trust recorded a notice of default. Thereafter, defendants executed a deed of trust purporting to encumber the property in the principal amount of $240,000. The property was then conveyed to defendant Cristina Talukder, through a corporation grant deed, which was also recorded. In April of 2004, Cristina Talukder conveyed the property to defendant Absara, LLC, as Trustee for the Alcove Trust, a company plaintiff alleges defendants David and Cristina Talukder treated as their alter ego.

In May of 2005, Absara, as trustee for Alcove Trust, conveyed the property to Carmen E. Echeverria by executing a Grant Deed, which was recorded in May of 2005.

Echeverria then obtained a loan in the principal amount of $344,000.00 from plaintiff’s insured, Resmae Mortgage Corporation, which loan was secured by a deed of trust on the property, recorded on May 25, 2005. Plaintiff alleges that in connection with this loan transaction, it issued a policy of title insurance to the insured on the property, based on its reasonable reliance on the various fraudulent deeds of trust and grant deeds recorded by defendants.

In June of 2006, Dougherty filed a lawsuit naming the insured as a defendant in a case alleging that she was a victim of fraud, that the documents she signed were for a reverse mortgage, not to convey title, and seeking cancellation of the deed of trust of the insured. The insured made a claim under the policy to plaintiff. Dougherty then succeeded in the lawsuit when the court issued a judgment against defendants David Takukder, GIT Inc., Cristina Taludker and Absara as trustee for Alcove, and cancelled the insured’s deed of trust.

Plaintiff alleges that it paid the amount of $344,000 to its insured in satisfaction of the claim, and that defendants have refused to pay or indemnify plaintiff for its losses.

The complaint alleges causes of action for fraud, equitable indemnification, restitution based on unjust enrichment, and money paid.

On September 14, 2016, the default of defendant Git, Inc. was entered. On October 13, 2016, the default of defendant Absara, LLC was entered. On March 17, 2017, the default of defendant Absar, LLC as trustee for Alcove Trust was entered.

On July 21, 2017, the court heard six unopposed motions to compel responses to discovery from defendants Cristina Talukder and Mahboob Talukder (aka David). There was no appearance for defendants at the hearing, and the motions were granted, and monetary sanctions awarded.

On February 2, 2018, the court heard two unopposed motions for terminating sanctions, based on the failure of Cristina Talukder and Mahboob Talukder to comply with the court’s orders of July 21, 2017 to serve responses to discovery or to pay sanctions. The motions were granted, and the court ordered the General Denial filed August 8, 2016 to be stricken as to each of the defendants. The court also awarded further monetary sanctions.

On March 9, 2018, plaintiff filed Requests for Entry of Default of Mahboob Talukder and Cristina Talukder, which were entered as requested the same date.

On June 4, 2018, the court entered judgment by the court by default based on plaintiff’s written declaration in the sum of $493,879.58 against defendants Cristina Talukder, Mahboob Talukder, Absara, LLC, Absara, LLC as Trustee, and GIT, Inc.

On October 19, 2018, the court heard a motion to set aside default and default judgment filed by defendant Mahboob Talukder. The motion was granted, based on defendant’s mistake, surprise and/or excusable neglect, and the default and default judgment entered as to Mahboob Talukder were set aside. The defaults and default judgment against the remaining defendants remain in effect.

ANALYSIS:

Plaintiff Chicago Title Insurance Company brings this motion seeking summary judgment in its favor in the sum of $344,000, plus attorney fees of $40,498.00, plus interest at the legal rate of 10% per annum from July 23, 2015.

Defendant Mahboob Talukder argues in opposition to the motion that this action is barred by a previous bankruptcy petition, discharge and injunction entered in favor of defendant in 2008.

Plaintiff in reply indicates that plaintiff had no knowledge that defendant had filed bankruptcy until it was brought up in the opposition to the motion for summary judgment, and requests that the hearing on the Motion for Summary Judgment be continued so that plaintiff may pursue its remedies against defendant in the bankruptcy court, by seeking to have the bankruptcy case reopened or to have the bankruptcy court otherwise clarify the status of the current claim with respect to the discharge. This appears reasonable, and the matter should be continued. The court also will continue the March 2020 trial date and other future dates.

RULING:

Motion for Summary Judgment, or in the Alternative, Summary Adjudication of Issues of Plaintiff Chicago Title Insurance Company:

The court notes that plaintiff has filed a reply in which it is stated that “Chicago respectfully requests that the hearing on the Motion for Summary Judgment be continued so that it may pursue its remedies against the Defendant in the bankruptcy Court.”

The request is granted. The matter is continued to June 19, 2020.

The court will set new trial dates and related dates at the hearing.